Neupane (Migration)

[2024] AATA 2964

Neupane (Migration) [2024] AATA 2964 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinesh Neupane

REPRESENTATIVE:  Mr Mohammad Shahadat Hossain (MARN: 1799395)

CASE NUMBER:  2302345

HOME AFFAIRS REFERENCE(S):         BCC2022/4247847

MEMBER:Penelope Hunter

DATE:7 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 August 2024 at 3:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – applicant changed courses – compassionate and compelling circumstances – mental health issues – no deferment of studies sought – applicant maintained employment – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 February 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 June 2024 via Ms Teams video to give evidence and present arguments. The applicant was represented in relation to the review and his representative also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

6. The applicant is a 26 year old male citizen of Nepal. He was granted the visa on 26 March 2021 for a period of stay in Australia up until 29 February 2024 to undertake study. This visa was subject to conditions, including condition 8202.

7. On 27 January 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the Provider Registration and International Student Management System (PRISMS) records indicated that applicant was not enrolled in a registered course of study. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to comment.

8. With the assistance of an agent the applicant provided a submission in response to the Department on 31 January 2023. The applicant did not dispute that there was a ground for cancellation, however claimed that there were compassionate and compelling circumstances leading to the non-compliance. The applicant provided for the consideration of the delegate a new Confirmation of Enrolment (CoE) in a Certificate IV in Kitchen Management due to commence on 13 February 2023, a medical certificate from Dr Elsadig Mohammed of Lakemba Medical Services dated 28 January 2023 and payslips from his employment.

9. After weighing the information before it, the delegate determined that the grounds for cancellation of the applicant’s visa outweighed the reasons for not cancelling, and determined to cancel the visa.

10. The Tribunal received an application for review from the applicant on 21 February 2023, together with a copy of the decision record of the delegate under review.

11. In anticipation of the Tribunal hearing the applicant provided submissions from his  representative, a record of results issued by Western Sydney College in the Diploma of Information Technology (Networking) dated 4 December 2020 and a report of Joseph D’Silva, psychologist. dated 31 January 2023. In the submissions, the applicant’s representative set out that the applicant acknowledges the information from his PRISMS records that he did not hold any enrolments in a full-time registered course from 15 November 2021 to 23 January 2023.

    Did the applicant comply with Condition 8202?

12. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant did not maintain enrolment in a full time registered course.

14. In submissions to the Department and also to the Tribunal the applicant did not dispute that he was not enrolled in a course of study between 15 November 2021 and 23 January 2023. He also confirmed this was the case in his oral evidence at hearing.

15. Therefore,  on the material before it, the Tribunal is satisfied that as applicant was not enrolled in a full time registered course between the period 15 November 2021 and 23 January 2023. Accordingly, the Tribunal finds that the applicant did not comply with condition 8202(2)(a).

16. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The purpose of the applicant’s travel and stay in Australia was for him to undertake study. The applicant argued that he wished for his visa to be reinstated as he wanted to resume his education. He said that he had hoped to continue studying while awaiting review but this was not permitted under his current bridging visa. He said that he had gone through a lot of things in the past and maintained that he needed to obtain Australian qualifications prior to his return to Nepal.

19. The Tribunal has also considered the study history of the applicant. Particularly, that the visa under review is the second student visa obtained by the applicant. He first arrived in Australia in 2017, and since then he has completed one course being the Diploma of Information Technology in 2020. The delegate has set out in their decision record details of numerous enrolments that the applicant has had cancelled in the past. The applicant was granted the relevant visa under consideration on 26 March 2021 to undertake studies in a Certificate IV in Light Vehicle Mechanical Technology, then to progress to a Certificate IV in Automotive Mechanical Diagnosis followed by a Diploma of Automotive Management. As set out by the delegate, these enrolments were cancelled due to non-commencement of studies. Prior to the cancellation of his visa, the applicant had obtained new enrolments in the Certificate IV I Kitchen Management and a Diploma of Hospitality. He has changed his study pathway several times. When asked by the Tribunal if he genuinely desired Australian qualifications, the applicant claimed that he needed them. He said that he was just 20 years of age when he first arrived, he became homesick and he did not have the correct mental state to continue with his studies. He said that he pushed himself hard but that things did not improve.

20. The applicant said that he was confident that his studies in Hospitality were the right choice because he now had experience working as a cook at the Ambarvale Hotel for three years and he was engaged with cookery and the experience in hospitality and he believed that he now had the right mental attitude to complete his studies. The applicant claimed that he had worked with his doctor to ensure that he was now in the right mental state to complete his studies.

21. The Tribunal has considered the claim of the applicant that he wishes to return to study and that Australia has a quality education system. It also notes that the applicant did not engage in any study for approximately fourteen months prior to the cancellation of his visa. While the applicant claims that it was his intention to return to study, he only obtained an enrolment after being contacted by the Department requesting confirmation of his contact details. He has an unremarkable study record to date, and since his arrival in Australia he has had several CoEs registered and subsequently cancelled, not all of these events can be explained by the applicant’s youth. Neither is the Tribunal satisfied that they are addressed by the medical evidence before it.

22. It is not the case that the applicant is without study options in the future. He is able to study in his home country, he now has the maturity to see the value in course completion and will have the benefit of the presence of his family so his homesickness will not continue to be a distraction. While qualifications in his home country may be of lesser value, the applicant has had a number of years to obtain qualifications in Australia and has not demonstrated capacity to do so.  

23. Overall the Tribunal considers that this factor weighs in favour of cancellation of the visa.

    The extent of the applicant’s compliance with visa conditions

24. As set out above the duration of the applicant’s non-compliance was considerable from November 2021 to January 2023. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern and engaging in study goes to the core purpose of the visa.

25. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of the visa under consideration.

26. The Tribunal considers that this factor weighs in favour of the cancellation of the visa.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. The applicant told the Tribunal if he was to return to Nepal after seven years without qualifications that there would be a lot of cultural pressure on his family and he would be a great disappointment to his family. He said that his parents were getting older and he had to make them proud, he claimed that he had been lost in the past. He said that the economic situation was not great in his home country, with international qualifications he would have a better chance at finding a good position. He could then provide financially for himself and his family in the future.

28. The Tribunal asked the applicant about his Diploma of Information Technology and whether this qualification would be sufficient for his future. The applicant conceded that although the course was completed he did not pass sufficient units to achieve the award of the qualification.

29. The Tribunal accepts that the applicant’s family have gone to considerable expense to provide funds to the applicant to enable his to achieve and overseas education. Yet, the  Tribunal also notes that the applicant will be starting his proposed courses from the beginning. It is not the case that he is partway through his studies, and will lose the value of courses or a program of courses he has partially completed. He is choosing a new field of study and will also be incurring further costs associated with this program of study.

30. The Tribunal accepts that an Australian qualifications may assist the applicant to obtain employment in his home country in the future. Yet, the applicant is not without the opportunity to engage in study in the future, he acknowledged that courses in hospitality were available in his home country, although they are perceived to be of lesser quality. The applicant has also obtained considerable experience in the hospitality industry in Australia. The Tribunal is not satisfied that it is the case that the applicant will be without employment opportunities.

31. The representative of the applicant has submitted that the stable access to treatment is crucial for the applicant’s ongoing well-being, and that the support system he has cultivated in Australia was also vital. The applicant told the Tribunal that had he engaged with a couple of sessions of psychological treatment with Joseph D’Silva by telephone after January 2023. When questioned he also confirmed that he was not currently scheduling regular appointments as he felt he had worked to put himself in a good position mentally to continue his studies. However, he told the Tribunal that he did not think he would cope well mentally if his visa remained cancelled.

32. The Tribunal accepts the evidence that the applicant has experienced anxiety and depression in the past, which has required treatment. It also accepts that if his visa remains cancelled it will have an impact on his mental state and cause further psychological hardship. It does not accept that it will interrupt his ongoing treatment or that the applicant may not be able to access treatment in the future in his home country.

33. The Tribunal gives this factor some weight against the cancellation of the visa.

    Circumstances in which the grounds for cancellation arose

34. The applicant claimed in his submission to the Department that the COVID-19 pandemic impacted his life to great extent. Firstly he was very concerned for his family and he was not able to fly home. Then he lost his job and he had to stay home. The applicant asserted that he was in a critical situation stuck being at home and not being able to focus on his life, he said that he would just keep over-thinking, ruminating on negative things. The news at the time was frightening and he would hear about people dying and his mental state was terrible.

35. The Tribunal accepts that the pandemic had an impact on the applicant’s studies, for a time his employment and he that would have been concerned about his family. However, the relevant period of the applicant’s non-compliance with his visa condition was between November 2021 and January 2023, when many of the restrictions associated with the pandemic had eased.

36. The Tribunal notes the applicant’s concern at being away from his family and that he could not return to them during the pandemic restrictions. However, outside this period he has not taken any opportunity to visit them prior to the cancellation of his visa. The Tribunal is unsure what weight it can attribute to this factor in justifying the applicant’s non-compliance.

37. The Tribunal has reviewed the letter from the applicant’s general practitioner, Dr Elsadig Mohammed, who claims that the applicant had been affected by the medical conditions of depression, insomnia, lack of concentration, loss of appetite and social issues, during the period 28 November 2021 to 28 January 2023. It is noted that the correspondence is dated 28 January 2023, the applicant was asked whether he had sought treatment from Dr Mohammed prior to the receiving the NOICC and he claimed that he had. When asked what treatment had been delivered the applicant identified that it was the referral to his psychologist Joseph D’Silva. Mr D’Silva records that his consultation with the applicant took place on 31 January 2023, and that at this time the applicant reported psychological symptoms that pointed to a diagnosis of Mixed Anxiety and Depression (DSM V Diagnosis).

38. The applicant’s representative has submitted that the applicant’s non-compliance with his visa was beyond his control and intrinsically linked to his health condition. It is claimed that the period of non-compliance was linked to an untreated psychological issue, which, once identified, prompted the applicant to seek immediate medical attention.

39. The Tribunal accepts that once the potential of his visa being cancelled was identified the applicant took steps to address his mental health condition. At this time it appears that the applicant was suffering symptoms. However, his practitioners appear to be reporting on his condition retrospectively on the basis of symptoms conveyed by the applicant. The Tribunal is not satisfied that the evidence demonstrates the condition of the applicant at the time that his enrolment ceased. The applicant states in his submissions to the Department that he had been employed at the Ambravale Hotel since 2020. The payslips the applicant presented to the Department also indicate he was able to maintain employment of 38 hours per week, despite his psychological condition in January 2023. Upon assessing the evidence overall it is not satisfied that the applicant was unable to seek assistance for his mental health condition and address his study difficulties earlier. It is not satisfied that the circumstances in which the ground for cancellation arose were outside his control. Neither is the Tribunal satisfied that the duration for which the applicant was in breach of his visa condition was a circumstance outside the control of the applicant.

40. The Tribunal gives this factor low weight in favour of not cancelling the visa.

    The past and present behaviour of the visa holder towards the Department

41. There is no evidence that the applicant has not been cooperative in his dealings with the Department.

42. The Tribunal gives this factor some weight in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s 140

43. The applicant is single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled. There is no weight attributed to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

44. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation. The applicant said that he just wanted to complete an Australian qualification.

45. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

46. It is accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia or applying for a different kind of visa. This however is the intended consequence of cancellation.

1. The Tribunal gives this factor this neutral weight.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

2. The applicant is a citizen of Nepal. The Tribunal asked the applicant if he had any fears about returning to Nepal and he said that he just did not wish to go home empty handed. It is accepted that the applicant wishes the opportunity to engage in further studies but he has not made and claims, and there is no evidence before the Tribunal, that any international obligations are engaged.

3. He does not have any children whose interests would be affected by the cancellation of his visa.

4. The Tribunal gives this factor no weight.

   Any other relevant matters

5. The Tribunal disclosed to the applicant prior to the hearing that contained on the Department file was a certificate of non-disclosure issued pursuant to s 375A of the Act, which set out that the disclosure of certain identified folios would be contrary to public interest. The reasons provided for the non-disclosure being contract to public interest was that it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

6. The applicant was also provided with a copy of the certificate prior to the hearing and at the hearing submissions were invited as to the validity of the certificate. The validity was not disputed.

7. The certificate is dated and signed, further the officer issuing the certificate is identified. The records contain contact details relevant to enquiries made by the Department as to whether the applicant was in breach of his visa condition. Tribunal accepts on its face that this would be a valid reason for non-disclosure of relevant information. The Tribunal is satisfied that it is valid.

8. The Tribunal further disclosed to the applicant the substance of the information contained in the records, particularly that it was an administrative checklist undertaken by the Department to assess whether the grounds for cancellation were established. The Tribunal informed the applicant that it would make its own assessment as to whether the grounds for cancellation were made out. The reasons for the delegate’s refusal were contained in their decision and it would be placing no reliance on the records.

9. The material covered by the certificate has no material bearing on the Tribunal’s consideration of the application under review. It is given no weight in the Tribunal’s considerations.

   Conclusion

10. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. In weighing these considerations there are limited aspects that are favourable to the applicant. Although it is accepted that the applicant was psychologically impacted by the pandemic and the pandemic was outside his control, it is not satisfied that it is demonstrated that the applicant’s non-compliance with his visa condition and the duration of his non-compliance was outside his control. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is accepted that the applicant wishes to remain in Australia and he will experience some hardship if his visa remains cancelled, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

11. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.